Mouroufas and Secretary, Department of Social Services (Social services second review)

[2017] AATA 3012

Mouroufas and Secretary, Department of Social Services (Social services second review) [2017] AATA 3012 (20 October 2017)

Division:GENERAL DIVISION

File Number:          2015/5308

Re:Mina Mouroufas

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member N A Manetta

Date:20 October 2017

Date of written reasons:         6 February 2018

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that Ms Mouroufas’ pension be reinstated with effect from her return to Australia on 12 December 2013.  

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Senior Member N A Manetta

CATCHWORDS

SOCIAL SECURITY - disability support pension - suspension or cancellation – DSP recipient leaving Australia to visit friend overseas – recipient knowing of automatic suspension followed by cancellation after a certain period under internal policy – held internal policy to effect cancellation automatically without regard to applicant’s circumstances inappropriate – applicant not seeking to give up residence in Australia – decision to cancel set aside. 

LEGISLATION

Social Security Act 1991, s 1217

Social Security (Administration) Act 1999, s 80

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

REASONS FOR DECISION

Senior Member N A Manetta

6 February 2018

1. After I delivered my oral decision, I received a request for written reasons which I now publish.

2. This is an application by Ms Mina Mouroufas for review of a decision of the then Social Security Appeals Tribunal (SSAT) dated 28 August 2015.  By its decision, the SSAT affirmed decisions taken on behalf of the respondent to cancel Ms Mouroufas’ disability support pension (DSP) in circumstances which I shall describe in the course of these reasons.  At the hearing before me, Ms Mouroufas was represented by Mr Warren; Ms Odgers appeared for the respondent.

   SUMMARY OF CONCLUSION

3. I have decided to set aside the decision under review.  I now set out the background facts and the reasons for my decision.  

   BACKGROUND FACTS

4. Ms Mouroufas had for some years regularly left Australia to spend time in Greece with a friend who lived there.  She well understood the rules as they were applied in practice by Centrelink to her departures so far as they bore on her DSP.  She knew that her DSP would continue to be paid for a limited period of time only, after which it would be suspended automatically.[1]  She also knew that after a further period of time, Centrelink would move to cancel her pension altogether unless she had by then returned to Australia.[2]  She knew how to calculate the exact date of future cancellation, and she kept herself well informed.  Indeed, she had had dealings with Centrelink in the past over the suspension of her pension.

   [1] This follows from the so-called “portability” provisions in section 1217 of the Social Security Act, 1991.

   [2] Ms Mouroufas was aware of Centrelink’s practice of cancelling the pension 13 weeks after suspension took effect. The cancellation power appears in section 80 of the Social Security (Administration) Act,1999 which permits cancellation of a payment that is being or has been paid to a person to whom it is not, or was not, payable. I have assumed in the respondent’s favour for the purposes of deciding the application that this power is wide enough to support cancellation of a pension that has been suspended under s.1217 of the Social Security Act, 1991.

5. Ms Mouroufas also knew that Centrelink required her to notify to it her departures from Australia.  She gave evidence confirming that she had declined to do so on at least some of her trips to Greece.  On the evidence before me, there was no reason for that refusal on her part; rather, it was, I must say, a deliberate choice she made not to co-operate with Centrelink.

6. It might be suspected that Ms Mouroufas hoped that if she withheld information, Centrelink would not learn of her departures and continue to pay her DSP rather than suspend it.  This would allow her to extend her holiday stays in Greece.  This supposition is consistent with what appeared to be a curious practice; namely, Ms Mouroufas would regularly purchase one-way tickets only to Greece.  Family members back in Adelaide would keep an eye out for the letter of suspension and advise Ms Mouroufas of its arrival.  Ms Mouroufas would then calculate the last day by which she had to be back in Australia to avoid cancellation of her pension.  Only then would she proceed to book her return trip with that date in mind.  

7. I do not need to make a finding finally one way or the other in respect of Ms Mouroufas’ motivations in failing to keep Centrelink informed of her departures.  I am prepared to assume against her that she was, indeed, motivated by the hope to which I have just referred.  On the evidence before me, however, I note Centrelink did not exercise its power to cancel Ms Mouroufas’ pension in this case because of her failure to advise it of her departure from Australia.  Rather, Centrelink applied a policy, which it applies automatically to disability support pensioners departing Australia, to cancel her DSP as she had not returned to Australia within 13 weeks of its suspension.

8. The background to the trip to Greece from which Ms Mouroufas did not return in time[3] is as follows.  Ms Mouroufas gave evidence, which I accept, that after a very bad falling-out with her son and his girlfriend at the time, with whom she had been living, she suddenly packed her bags, left her son’s home, and flew to Greece to visit her friend.  As I have said, she did not inform Centrelink of her departure although she clearly knew from correspondence and communications with it in the past that Centrelink desired that information.  

   [3] That is, to avoid cancellation.

9. Ms Mouroufas’ pension was suspended in due course.  I note here that Ms Mouroufas’ daughter was Ms Mouroufas’ nominee for receiving correspondence from Centrelink.  I accept her daughter’s evidence that she (the daughter) was not aware of the suspension of the pension (which occurred some weeks after Ms Mouroufas’ departure and in accordance with the requirements in that regard that were then applicable).

10. I note, however, that I do not accept Mr Warren’s submission that I should infer that no letter of suspension was sent to Ms Mouroufas’ daughter’s home.  I find a letter was sent and received.  Although Ms Mouroufas’ daughter gave evidence that she regularly checked her post and kept it in the same place in her home, she also gave evidence of a very difficult domestic environment.  It is not difficult to imagine the post going missing or being overlooked in those circumstances.

11. Ms Mouroufas may well have thought that her DSP was still being paid after the date on which she knew it was liable to be suspended, and had in fact been suspended.  Equally, however, she clearly knew the rules as they applied in practice.  There is no doubt about that. 

12. In due course, a letter of cancellation was sent because Ms Mouroufas had not returned to Australia.  The family back home in Australia received that letter.  I accept Ms Mouroufas’ explanation that one reason she had stayed on in Greece was that her friend’s son had died and she wished to spend extra time there.  She also gave evidence that she had developed a respiratory problem and was having difficulty returning on that account.  I doubt on the evidence before me that this latter problem would have been a sufficient reason on its own to delay her departure.

13. It is clear that Ms Mouroufas did not intend to leave Australia permanently or indefinitely or to stay in Greece permanently or indefinitely.  While it is true that she had no exact date in mind, she did intend to return at some time.  I bear in mind here that she had decided to leave Australia spontaneously after a family argument and that she had always returned to Australia after her stay in Greece.  I bear in mind also that her family lives in Australia and that her principal ties are here.  There is no evidence before me that she had spontaneously decided to leave Australia with no intention of returning.

    REASONS FOR CANCELLATION

14. Centrelink’s decision to cancel Ms Mouroufas’ DSP was not made by reference to any factors personal to Ms Mouroufas.  Rather, as it was put to me, Centrelink’s decision followed automatically under its departmental policy governing disability support pensioners who stay overseas.

15. In particular, I note that Ms Odgers did not seek to justify the decision to cancel Ms Mouroufas’ pension by reference to Ms Mouroufas’ choice not to disclose to Centrelink her departure date.  Standing in the shoes of the administrator, and accepting that concession, I would not propose to justify the cancellation by reference to that factor either.[4]  

    [4] When re-exercising the discretion to reach the correct or preferable decision on the material before me: Drake v. Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68-69.

16. Rather, the respondent’s position before me was that Ms Mouroufas knew her pension would be cancelled on a date which, from past experience, she knew very well how to estimate.  She should have expected the very consequence that befell her.

    CONSIDERATION

17. While I agree that Ms Mouroufas knew the date, or could easily have calculated the date, on which her pension would be cancelled under a departmental policy with which she was familiar, that is not, in my view, a sufficient answer.  Having regard to the statutory scheme,[5] the respondent had a statutory discretion to do one of two things; either (a) take no action to cancel and thereby continue the period of suspension which had come about automatically, or (b) cancel the pension altogether.  

    [5] Flowing from s.1217 of the Social Security Act, 1991 and s.80 of the Social Security (Administration) Act, 1999.

18. From a revenue point of view - that is, from the point of view of outlays by the Commonwealth - both options had the same impact; namely, that the pension would remain unpayable to Ms Mouroufas while she remained out of the country.  The exercise of the discretion did not involve a choice between, for example, continuing the payment of a pension and cancellation, where there would be a different consequence for the Commonwealth’s revenue.  

19. The critical practical consequence of cancellation in this case was that Ms Mouroufas would have to requalify for the pension when she returned and she would be obliged to meet the requirements then in force.

20. The decision to cancel rather than continue suspension can only be a lawful decision if it is made for reasons, and with regard to considerations, the Act expressly or implicitly makes relevant to the decision.  This raises the question of how the discretionary power to cancel, rather than to continue suspension, might properly be exercised in Ms Mouroufas’ case.  

21. That question does need to be asked and answered in my opinion.  In particular, it is not sufficient in my view for the respondent to justify cancellation on the basis that Ms Mouroufas knew in advance of Centrelink’s policy that led to the consequence that eventually occurred. 

22. There is no express reference in the legislative scheme to the purpose of the cancellation power or to the considerations that should inform its exercise.  Accordingly, these have to be discerned from a consideration of the Act as a whole as they apply to a person in Ms Mouroufas’ circumstances.  One might infer that the principal reason for conferring a power to cancel a suspended pension in the circumstances of someone like Ms Mouroufas (that is, while the disability support pensioner is overseas) is that the pensioner has ceased to be a resident in Australia.  In these circumstances, cancellation of the pension might be warranted.  The pensioner would have removed himself or herself from residence in Australia and from the need to be supported by the Australian social security system.  Another reason is, perhaps - and I need not finally decide its relevance -  that the person has become eligible for a pension payment in the place where the pensioner is now living.

23. As I have mentioned, since Ms Mouroufas’ pension was already suspended, the critical practical effect of the cancellation was not to improve revenue for the Commonwealth, but to end altogether her entitlement to a pension.  In the circumstances of this case, the only relevant reason that I can see for ending that entitlement would lie, in my opinion, in the cessation of residence in Australia by Ms Mouroufas (or possibly, as I have said, in the accrual by her of an entitlement to a benefit in Greece).  Neither of these considerations applies here on the evidence before me.  Once again, I would reiterate that no submission was made to me by Ms Odgers that I should affirm the cancellation of Ms Mouroufas’ pension because she did not disclose her departure date.

24. In this case, as I have said, Centrelink invoked automatically a cut-off date falling 13 weeks after suspension took effect without regard to any facts or considerations particular to Ms Mouroufas’ case.  Centrelink’s 13-week period does not, in my opinion, reflect a reasonable estimation of the time after which a person could reasonably be deemed, or taken, no longer to be resident in Australia.  Many people stay away from Australia for a good half-year, or a year, or even longer without ceasing to be residents of Australia.  People take holidays or live overseas with relatives for considerable periods without terminating their residence in Australia.

25. The automatic 13-week cancellation “rule” if I may call it that - and I note it was explained to me by Ms Odgers to be an internal policy rule that was automatically applied rather than a rule mandated in any Act or any subordinate legislation - does not have on its face a rational connection with the proper exercise of the cancellation discretion in the circumstances surrounding Ms Mouroufas’ case.  It is not, therefore, a policy I would apply; and in any event any policy must be applied flexibly and allow for appropriate exceptions and consideration of personal factors.[6]

    [6] Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634 especially at 640-641.

    RE-EXERCISE OF THE DISCRETION

26. Standing in the shoes of the administrator and exercising the discretion afresh, and once again noting that I am leaving to one side the fact that Ms Mouroufas failed to inform the Department of her departure, the only relevant reason for a decision to cancel her pension as opposed to continuing its suspension would lie, in my view, in her having ceased to be a resident in Australia.  On the evidence before me that was clearly not the case, and I reiterate that was not the respondent’s contention before me.  

27. Accordingly, I would re-exercise the discretion differently and decline to cancel the pension.

28. It is implicit in my decision that I do not regard as relevant to the decision that needs to be made in this case whether Ms Mouroufas did or did not know of Centrelink’s policy or whether she did or did not decide to stay on deliberately past the date she knew the pension would be cancelled.  The critical question is, rather, whether she had ceased to be resident in Australia.

29. It follows that I should set aside the decision of the SSAT and substitute a decision setting aside the decision of the authorised review officer dated 3 June 2015 and reinstating Ms Mouroufas’ pension with effect from her return to Australia. I shall draw up a formal decision to that effect.

I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

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Administrative Assistant

Dated:  6 February 2018

Date(s) of hearing:	26 June & 20 October 2017
Counsel for the Applicant:	Mr J Warren
Advocate for the Applicant:	Mr P Kourbelis
Solicitors for the Applicant:	K+K Legal
Advocate for the Respondent:	Ms L-A Odgers
Solicitors for the Respondent:	Dept of Human Services